RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX                                                                     	CASE:  PD-2014-03918
BRANCH OF SERVICE:  Army                                                                 	SEPARATION DATE:  20081204

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Forward Observer) medically separated for low back pain (LBP) and cluster headaches.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent P3L3 profile and referred for a Medical Evaluation Board (MEB).  The “lumbago” and “cluster headaches,” conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded five other conditions (charted below) for PEB adjudication.  The Informal PEB adjudicated “chronic low back pain…” and “cluster headaches,” as unfitting, rated 10% and 10% respectively, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The applicant requested consideration of all conditions in his application.  His complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:  

IPEB - Dated 20080826	VA* - (24 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP…	5299-5237	10%	Chronic Lumbar Strain (Claimed as Back Injury)	5237	10%	20101228	
Cluster Headaches…	8199-8100	10%	Headaches	8100	0%	20101228	
Anxiety Disorder	Not Unfitting 	No VA Placement	
Depression	Not Unfitting	No VA Placement	
Hypertension	Not Unfitting	Hypertension	7101	NSC	20101228	
Tuberculosis (TB) Latent	Not Unfitting	No VA Placement	
Ankle Pain, Left	Not Unfitting	No VA Placement	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 13 	
COMBINED RATING:  20%	COMBINED RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20110513 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:   

Chronic LBP Condition.    The Narrative Summary (NARSUM) dated 18 July 2008 noted the back pain was insidious in onset without history of trauma.  On 7 July 2006 a computed tomography, or CT scan, of the lumbar spine revealed diffuse disc bulge at L4-L5 causing mild canal stenosis. Magnetic resonance imaging (MRI) of the lumbar spine dated 14 April 2008 was normal.  The CI did not experience any incapacitating episodes; he was able to deploy with his unit and participated in multiple strenuous activities, but was not fully capable of performing all of the duties required of his MOS.   Having failed conservative treatment he was placed on a permanent profile.   

At the MEB NARSUM exam, the CI reported morning stiffness in his back which required him to do stretches before he went to work.  He avoided strenuous physical activities such as lifting or repetitive bending/twisting.  His back pain radiated down his right leg with prolonged standing, or sitting.  He had not found anything particularly helpful in relieving his pain.  Physical examination noted no tenderness of the thoracolumbar spine, no neurological deficits, normal muscle strength, and a normal gait.  Range-of-motion (ROM) on average of three recordings documented forward flexion of 110 degrees (90 is normal), with pain at 90 degrees, and extension of 25 degrees (30 is normal).  

At the VA Compensation and Pension (C&P) dated 28 December 2010, approximately 2 years after separation, the CI reported constant LBP which sometimes traveled to the upper back.  He took medication and found one particular medication helpful.  He had no incapacitating episodes and walked without assistive devices.  Physical exam noted tenderness over the L3 spine area and pain on motion.  His gait was normal and he could heel and toe walk without difficulty.  ROM documented forward flexion of thoracolumbar spine of 77 degrees and extension to 20 degrees.  

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the condition 10% for painful motion analogously coded 5237 (lumbosacral strain).  The VA rated 10% based on ROM and coded 5237.  A higher rating of 20% requires spasms producing abnormal gait, or abnormal curvature of the spine, or forward flexion not greater than 60 degrees.   The Board agreed there was pain on motion supporting the 10%; however, there was insufficient evidence to support the higher rating of 20% under the ROM code.  There was no evidence of incapacitating episodes for a higher rating under 5243 nor was there a VASRD- sanctioned pathway to a rating higher than the minimal compensable rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back pain condition.  
Cluster Headaches Condition.    The NARSUM documented that in October 2005 the CI began to have severe, “incapacitating” headaches and was referred to the neurology clinic for evaluation.  His headaches required quarters because he was unable to work.  The headaches occurred 2-3 times a day and caused visual distortion with loss of vision, nausea and dizziness.  This continued for about 3 months then abruptly ended.  His headaches started again in December 2007 and he had several visits to the emergency room.  He resumed taking medication for the diagnosis of cluster headaches and was referred to pain management.  In late July 2008, he was admitted to the hospital for 5 days and received specific therapy directed by neurology which resolved his headaches.  It was noted that he had a history of head trauma 2-3 years prior from a blow to the back of his head during a fight.  No medical treatment was sought at the time.  His headaches began months later.  The neurologist also noted that the CI’s chronic sinusitis may have contributed to his headaches as well.  

At the NARSUM, the CI reported that if he took his medication when he felt a headache coming on, it would greatly reduce the intensity of the pain.  He was taking the medication three times a day because he felt the pain that often.   If he didn’t take his medication in time, it was harder to manage the pain.  When his pain was intense he was unable to do any activities and found no relief with rest, dark spaces, quiet, or other maneuvers.  The service treatment records documented one single order for 24-hour quarters in April 2008, and one in 2006. The C&P neurological exam was accomplished 12 months after separation.    The CI reported he had two episodes of cluster headaches, each lasting for months.  His last episode occurred in 2008 and it lasted for 12 months ending in January 2009 (about 1 month after separation).  The examiner noted that the CI had not had any headaches since 2009. 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition 10% coded analogously 8100 (migraine), citing a history of three prostrating episodes in the past 8 months: December 2007, April 2008, and 31 July 2008 (hospital admission).  The PEB indicated that the condition was “Rated 10%, for one prostrating headache in 2 months over the last several months”.  The VA rated the condition at 0% coded 8100.  The 10% rating under this code requires one prostrating headaches in 2 months over the past several months.     The higher rating of 30% requires once monthly over several months of prostrating headache attacks.  Key evidence of prostrating, severity, and frequency include evidence of the stoppage of work or current activity, and evidence of self-management (medications, sleep), treatment notes, and supervisor statement.  The Board undertook a careful review of the record in evidence and noted the absence of documented emergency care treatment in the 6 months before separation, and the absence of prescribed quarters.  The commander’s statement noted the CI could not perform his MOS duties effectively due to headaches and he was unable to work normal duty hours; however, it was noted the CI was working an 8-hour duty day, and there was no evidence of work stoppage (having to leave work due to headache), or measures taken to alleviate the headache (time off from work, accommodations like having to go to a darkened/quiet room).  The record demonstrated only one headache attack that clearly met the definition of a prostrating headache in the 4 months before separation.  That episode resulted in a 5-day inpatient treatment for resolution.  The Board acknowledges the CI suffered headaches frequently and had less than desirable response to medication; however, the record documented only one debilitating headache attack over a several month period of time before separation. All Board members agreed that the 30% criteria were not supported by the evidence.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the cluster headache condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the conditions of anxiety disorder, depression, hypertension, TB latent, and left ankle pain, were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The Board undertook a careful review of the record in evidence and noted a total of two mental health care treatment entries.  The August 2008 note indicated the CI participated in group therapy to address symptoms of stress and anxiety.  The therapist recorded the diagnosis of anxiety NOS.  It was noted the CI left 30 minutes before the session ended.  In the June 2008 entry, the CI reported a childhood history of treatment for anxiety and mood symptoms.  At that visit with the psychologist, the CI reported symptoms suggestive of anxiety attacks, and noted that after his return from Iraq he had increased vigilance behavior and an exaggerated startle response.  He denied re-experiencing symptoms such as combat nightmares or flashbacks.  The psychologist noted the CI had a prescription for an antidepressant medication about 1 month prior and experienced worsening of irritability and agitation after taking the medication (Wellbutrin).  He discontinued the medication; however, did continue his anti-anxiety medication with noted benefit.  Neither the depression nor the anxiety condition was profiled or implicated in the commander’s statement and neither was judged to fail retention standards.   

The Board next considered the hypertension, latent TB, and left ankle conditions, and noted the CI had night sweats, but no fever, chills, recent weight loss, shortness of breath, hemoptysis,  and that he had a normal chest X-ray.  He refused TB prophylaxis medication.  Additionally, there was no evidence in the record of uncontrollable hypertension.   Likewise, there was no indication that his left ankle condition resulted in any impairment related to the performance of duty.  The tuberculosis, hypertension and left ankle conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.   There was no performance-based evidence from the record that any of the contended conditions significantly interfered with satisfactory duty performance.  After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the conditions of anxiety disorder, depression, hypertension, TB latent, and left ankle pain, and so no additional disability ratings are recommended.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the chronic LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the cluster headache condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.   In the matter of the contended anxiety disorder, depression, hypertension, TB latent, and left ankle pain conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140909, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB

19 JUL 2016

MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-00), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for (PD201403918)

I have reviewed the enclosed Department of Defense Physical Disability Board of
Review (DoD PDBR) recommendation and record of proceedings pertaining to the
subject individual. Under the authority of Title 10, United States Code, section 1554a,
I accept the Board's recommendation and hereby deny the individual's application.
This decision is final. The individual concerned, counsel (if any), and any Members of
Congress who have shown interest in this application have been notified of this decision
by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF:
( ) DoD PDBR
( ) DVA